Let Section 215 of the Patriot Act Die

I was in Washington, DC when the planes hit the World Trade Center and the Pentagon.

I felt rage and wanted the government to take strong action to get revenge against the planners of 9/11 and to punish those who protected and aided them.

And I wanted the government to do a better job of protecting America.

When you look back, the federal government took some actions that made sense and some that did not. The so called “PATRIOT Act” is one of those ideas that seemed to make sense in the fog of war right after 9/11, but some of the expiring provisions should be allowed to expire on June 1. They don’t work and they go too far.

The expiring provisions of the Patriot Act are unconstitutional. Notwithstanding the full throated support of former Florida Governor Jeb Bush and a new Senator who many call a younger version of Lindsey Graham, Tom Cotton of Arkansas, the Section 215 program violates privacy.

Section 215 of the PATRIOT Act is described by the Congressional Research Service (CRS) as “the act’s most controversial provision.” It expanded the authority for FISA orders compelling records and other tangible things in two ways. First, it enlarged the scope of materials that may be sought… Second, the section lowered the standard which must be met before the court may issue such orders.”

Remember that when people refer to the FISA Court, you need to understand that it is a “court” in name only. There is no right to notice of the accused, no right to jury, no right to appeal, no right to counsel and no real due process at all. It is an administrative rubber stamp proceeding that does not resemble a court in any way other than that it is presided over by a federal judge.

Politico reports “Sen. Tom Cotton is preparing for battle against Sen. Rand Paul and the GOP’s libertarian wing over the USA Patriot Act and the power of government to conduct spying operations domestically and abroad.” Senator Cotton is the leader of a young cadre of members who don’t care a bit about privacy and restraint in the use of force abroad.

On one side you have Sens. Mitch McConnell (R-KY), Cotton and Richard Burr (R-NC) who are pushing a bill to extend Section 215 of the PATRIOT Act to the end of 2020. On the other side you are going to have Sens. Paul, Mike Lee (R-UT) and Ron Wyden (D-OR) as the guardians of privacy. Conservatives and libertarian minded citizens need to hope that the guardians of privacy fight hard and win.

Some in the House are also willing to fight.

Rare reports that “the House repeal bill, which has been introduced by Representatives Thomas Massie (R-Ky.) and Mark Pocan (D-Wisc.), would end the USA Patriot Act in its entirety and order the destruction all collected information not being actively used in current investigations.” In 2013, Rep. Justin Amash (R-MI) offered an amendment to defund the NSA spying program that lost on a 205-217 vote. That shows that there is a strong coalition building for reform, if not repeal.

The Fourth Amendment to the Constitution recognizes every American’s natural right to privacy. This is not a right the government gives to citizens; it is a right that the government merely has recognized in the Bill of Rights. The federal government can’t chip away at that right through a statute.

Many on the left are messaging on this issue and the right needs to also rise up to defend a core freedom that our Founders fought and died for. The National Journal quotes Anthony Romero of the ACLU arguing in a blog post “the Patriot Act has been at the root of many of the most serious abuses of government spying powers. We need to have a serious debate about the effectiveness of the Patriot Act and its implications for civil liberties. Until that happens, Congress should let Section 215 of the Patriot Act expire with the whimper it deserves.” Treating all citizens as if they are suspected terrorists is not constitutional and not good policy.

I have never felt such pride as when I worked for Senator Rand Paul during his filibuster of the nomination of John Brennan to be President Obama’s Director of the Central Intelligence Agency (CIA). Basically, Rand Paul was filibustering to force President Obama to publicly declare his legal reasoning for the use of a drone strike against American citizens on American soil. This is a core of the Bill of Rights – that all Americans have a constitutional right to trial by jury before being put on a kill list or executed by the government.

A different, yet similar, principle is at stake here. Do Americans have the right to be protected from a warrantless government spying of American citizens on American soil? Let’s win this one in memory of James Otis and his winning battle against general warrants.